Inevitable? Not So Fast…

24 Sep Inevitable? Not So Fast…

On September 29, the U.S. Supreme Court justices will privately convene to start considering cases for their upcoming term, which begins in October. One case we hope they will accept is Utah’s petition defending the state’s ability to define marriage between a man and a woman. The Supreme Court Justices may announce their choices within a few weeks. If they do accept the Utah case, they could hear arguments this winter, and announce a decision by June 2015.

Some say that same-sex marriage is “inevitable” in the United States because so many Federal Judges have been overturning states’ marriage laws.

But as UFI Board Member Bill Duncan argues, “That contention is no longer available,” since Federal Judge Martin Feldman’s recent ruling for traditional marriage in Louisiana. We invite you to read Mr. Duncan’s excellent article below, explaining the Louisiana ruling–why it is important, how “there is no inevitability in social change,” and that “another, and wiser, choice is still possible.”

Perhaps the most powerful argument for same-sex marriage has been that it is “inevitable.” It’s powerful because it contains an implicit threat: If you think there is something unique and uniquely valuable about marriage between a husband and wife — you are on the wrong side of history and your views will soon be treated as unacceptable with the possibility of your livelihood being at risk.

This argument has gotten some fuel lately from a couple dozen federal and state court decisions ruling that the U.S. Constitution requires each state to redefine marriage to include same-sex couples. These courts have reasoned that when the U.S. Supreme Court last summer was silent on whether states could retain their marriage laws it really meant to signal that the states were actually not allowed to define marriage as the union of a husband and wife.

A common rhetorical point made by advocates of redefining marriage is that same-sex marriage is enjoying a streak of unbroken successes in the court.

That contention is no longer available, since Wednesday a federal court in Louisiana handily rejected the argument that redefining marriage is required by the Constitution. Most readers can be excused for not knowing about this development since it’s not getting much high-profile press coverage (as the decision would have if it had gone the other way).

The ruling is powerful. Written by U.S. District Judge Martin Feldman, it first rejects the idea that “sexual orientation” is equivalent to race for purpose of constitutional analysis and pointed out that the law treats men and women precisely the same.

The court notes the challenged laws are justified by important interests: “Louisiana’s laws and Constitution are directly related to achieving marriage’s historically preeminent purpose of linking children to their biological parents. Louisiana’s regime pays respect to the democratic process; to vigorous debate.” The court also rejected the idea that the laws were enacted from a motive of hatred or intolerance.

The court also makes the commonsense observation: “There is simply no fundamental right, historically or traditionally, to same-sex marriage.”

A crucial part of the court’s decision is the last section which discusses the other federal court decisions from which this opinion breaks and explains the principles that should guide the courts in assessing claims to the new right of same-sex marriage. Here are some significant passages from that section:This Court has arduously studied the volley of nationally orchestrated court rulings against states whose voters chose in free and open elections, whose legislatures, after a robust, even fractious debate and exchange of competing, vigorously differing views, listened to their citizens regarding the harshly divisive and passionate issue on same-sex marriage. The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos. Courts that, in the words of Justice Scalia in a different context in Bond v. United States, 134 S. Ct. 2077, 2094 (2014)(concurring opinion), appear to have assumed the mantle of a legislative body. . . . It would no doubt be celebrated to be in the company of the near-unanimity of the many other federal courts that have spoken to this pressing issue, if this Court were confident in the belief that those cases provide a correct guide. . . . The depth of passion inherent in the issues before this Court defies definition. That federal courts – 18 thus far – have joined in the hopeful chorus that the tide is turning seems ardent and is an arguably popular, indeed, poignant, outcome (whether or not credibly constitutionally driven). Perhaps, in the wake of today’s blurry notion of evolving understanding, the result is ordained. Perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage. Perhaps that is the next frontier, the next phase of some “evolving understanding of equality,” where what is marriage will be explored. And as plaintiffs vigorously remind, there have been embattled times when the federal judiciary properly inserted itself to correct a wrong in our society. But that is an incomplete answer to today’s social issue. When a federal court is obliged to confront a constitutional struggle over what is marriage, a singularly pivotal issue, the consequence of outcomes, intended or otherwise, seems an equally compelling part of the equation. It seems unjust to ignore. And so, inconvenient questions persist. For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs. Plaintiffs’ counsel was unable to answer such kinds of questions; the only hesitant response given was that such unions would result in “significant societal harms” that the states could indeed regulate. But not same-gender unions. This Court is powerless to be indifferent to the unknown and possibly imprudent consequences of such a decision. A decision for which there remains the arena of democratic debate. Free and open and probing debate. Indeed, fractious debate. . . . [I]t is not for this Court to resolve the wisdom of same-sex marriage. The nation is witness to a strong conversation about what is marriage. The central question that must first be asked, is what is the fairest forum for the answer? . . . Federalism is not extinct. Federalism remains a vibrant and essential component of our nation’s constitutional structure.

Not Just Louisiana

Interestingly, this decision from Louisiana accords with a decision from July by the European Court of Human Rights. That court ruled that Finland was not required by European human rights treaties to redefine marriage. That opinion said “it cannot be said that there exists any European consensus on allowing same-sex marriages.” The court characterized Article 12 of the European Convention on Human Rights as “enshrin[ing] the traditional concept of marriage as being between a man and a woman” and said it “cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples.”

There is no inevitability in social change. Whether we continue to recognize the role of marriage in promoting each child’s entitlement to a father and mother will depend on conscious choices. Many, perhaps most, federal judges appear to be choosing to use their power to promote a radical change to marriage. But this Louisiana decision makes clear that another, and wiser, choice is still possible.

William C. Duncan is director of Sutherland Institute’s Center for Family and Society and also serves as the director for the Marriage Law Foundation. He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law. He has published numerous articles on constitutional and family law issues in a variety of legal journals.